Drug Testing in DC Criminal Cases After Marijuana Legalization

Unlike most jurisdictions, the District of Columbia Superior Court does not operate on a cash bail system. That means there are no bail bondsman in the District of Columbia. In addition, how much an arrested person can pay has no bearing on whether the person actually gets released. Instead, the D.C. code has something called the Bail Reform Act, which creates a condition-based system for pretrial release.

There are certainly benefits to the approach but also some problems. Unlike many states, no person arrested will languish in jail because they cannot afford to pay a bondsman. However, the condition-based system actually has a practical effect of essentially putting the defendant on probation before even getting convicted. For most misdemeanor offenses, like DUI and simple assault, the judge will release the individual on personal recognizance.  Personal recognizance is just on the person’s promise to return to court.

The judge will have the defendant sign a piece of paper promising to return to court. If the person does not return on their court date, the judge will issue a warrant for their arrest and often times the prosecutor will charge the individual with a BRA or Bail Reform Act violation. A BRA is a separate criminal offense and carries a maximum penalty of 180 days in jail and/or a $1,000.00 fine.

In addition to making the defendant promise to appear, judges will often order the defendant to drug test. This actually is quite a humiliating process which requires the defendant to go into a restroom with an officer from the Pretrial Services Agency and physically watch the defendant urinate in front of a mirror. The purpose is to make sure that the defendant does not submit someone else’s urine.

Under the condition-based system for bail in DC, the judge can revoke the individual’s bond if they violate their conditions of release. If the person tests positive for drugs repeatedly, this can often lead the judge to revoking bond and locking the person up until their criminal case is resolved. One welcome change of DC legalizing marijuana was that the Pretrial Services Agency stopped testing individuals arrested and placed on bond for marijuana. In prior years, testing positive for marijuana while on pretrial release could lead to getting locked up.

In addition, DC’s marijuana legalization law specifically prohibits judges from punishing folks on probation for testing positive for marijuana. However, this does not apply to other drugs like opiates, cocaine, amphetamines, and synthetic marijuana like K2. Defendants can also run in to trouble when they have prescriptions for drugs like Adderall (an amphetamine), pain killers (opiates), and drugs like Xanax (a benzodiazepine). For individuals who have to go to court for a criminal charge, its imperative that they bring their actual prescriptions (including the bottles) to Pretrial Services to let them know to screen for lawfully prescribed medication. If they do not bring the prescriptions, they could get in trouble with Pretrial and ultimately with the judge.

After DC legalized marijuana under local law, many changes have occurred in the criminal justice system and throughout the legal system. Moreover, this article only applies to folks charged with a crime in DC. Government and private employers throughout the DC, Maryland, and Virginia area all have different rules for drug testing. And while you may not get specifically punished for using marijuana in a criminal case in DC Superior Court, that does not mean your employer may not drug test you or take some adverse action if you test positive for marijuana. If you have questions about employment laws regarding drug testing in the DC, Maryland, Virginia, area, its best to consult with a qualified employment lawyer.

Finally, this article does not apply to folks charged with crimes in federal court where marijuana remains illegal under federal law. Its also probably not a good idea to smoke marijuana when on pretrial release or probation for a criminal case in DC. When you’re liberty is at stake, its best to exercise caution and avoid any situation where you could potentially get yourself in trouble.  You should consult with a qualified criminal defense or marijuana lawyer to discuss the risks.

If you or a loved one have been arrested or are under investigation in the District of Columbia, contact us today for a full case evaluation.

Additional Resources

Marijuana in the Workplace Under D.C., Maryland, and Virginia Law, September 21, 2018, Merritt Green, General Counsel Law PC.

Pretrial Services Agency for the District of Columbia

More Blog Posts

Are Edibles Pop Up Events Legal in DC?, August 5, 2018, No Papered: A Washington DC DUI Lawyer Blog.

DC Marijuana Decriminalization: Know the Facts, August 1, 2014, No Papered: A Washington DC DUI Lawyer Blog.